Pregnant Workers Fairness Act: Everything HR and People teams need to know

Jess Fuhl
Published on 6th August 2020
3 min read

Over two-thirds of women who are pregnant work through pregnancy, and over 50% are still a part of the workforce a month before their due date. 

Understandably, employees who continue to work during their pregnancies may need some reasonable adjustments made to their role. While many employers do, governments are finding an increasing need to establish clear guidelines.

To this end, the US have recently proposed the ‘Bipartisan Pregnancy Accommodation Bill’, a federal bill that has advanced but not yet passed, to be enacted as the ‘Pregnant Workers Fairness Act.’

So, what do HR and People teams need to know about the new legislation? We look at what’s included, along with some steps you can take to adapt and evolve existing parental leave policies ahead of the changes.

What is the Pregnant Workers Fairness Act?

The proposed law would mean that all pregnant workers are provided reasonable accommodation for ‘known limitations related to the pregnancy, childbirth or related medical conditions.’

Reasonable accommodation generally excludes anything that would cause ‘undue hardship’ to the employer, and is similar in language and framework to the American Disability Act, making its requirements and terms familiar to employers and courts. 

Why has the Pregnant Workers Fairness Act been proposed?

Until recently in the US there have been a few notable cases which have lacked reasonable accommodation to protect the health and safety of working expectant mothers.

In one case, a paramedic was placed on unpaid leave when she was no longer able to lift the stretcher that weighed over 100 pounds. In another incident, an airline representative was refused a reassignment when she requested a role that didn’t require her to move baggage to a luggage belt. Some employers have refused to even offer additional breaks for water.

While approximately 25 states have protections in place for pregnant workers already, this leaves an almost equal number of states and their respective workers without protection, so there’s a need for a federal standard.

What will the Pregnant Workers Fairness Act cover?

It’s important that HR and People teams take critical steps to help their business adapt.

If the bill is successfully passed, they’ll be ahead of the curve in their response, but beyond whether or not it passes, adapting parental leave policies allows your employees to feel as though they’re being fully supported.

There are three main things that HR and People teams will need to be aware of.

1. Make reasonable accommodations to known limitations 

HR leaders must make reasonable accommodations for pregnant employees and job applicants.  

This isn’t limited to the duration of the pregnancy itself – it also extends to associated medical conditions and childbirth. Employees can refuse the accommodations companies suggest, so it’s best to work with your employees to make changes to the policies so they’ve fed in and are on board.

Be mindful that reasonable accommodation, according to the bill, is to be determined through an ‘interactive dialogue’ between the worker and the employer, so it’s important to encourage a culture of open communication with your employees.

This would be a good time to give managers training to explore what the new legislation means. For example, if a pregnant employee were to need to drop one or two of their duties, this may be considered reasonable so managers should be made aware of what the organization would consider ‘reasonable’ under the new act.

Additionally, it could be useful to make them aware who within the HR and People team they should go to for support.

2. Give your employees fair employment opportunities

While this may seem obvious, it’s surprising how many organizations don’t offer fair employment opportunities, whether they know it or not.

This will be made clear in the act, stating that you cannot deny employees any opportunities to progress in their careers due to pregnancy or post-childbirth.

Unfortunately, a number of employers automatically opt women out of opportunities for advancement after childbirth citing family obligations as a potential barrier for them.

To show the scale of the issue, the Equal Employment Opportunity Commission received 3,184 discrimination complaints just in 2017, and recent research shows that women receive a 4% reduction of their hourly wages for every child they have.

Make sure all managers are equipped on what is expected when it comes to open conversations. For example, how employees with their managers can explore the avenues open to them, such as flexible working or discussing a new development opportunity.

3. Consider all work options

No worker should be made to leave because they’re pregnant – organizations that lead the way on this, lead the way as a fair employer and an organization of choice.

What can your employee do whilst they are pregnant? Whilst they may not be able to perform all their previous tasks, they will be capable of undertaking some of their previous work.

Identify the work that the employee is unable to perform and see if it can be taken on by other employees or whether you would need to hire to ensure the work is completed. As time goes on, this workload may increase so bear this in mind when making your decision.

What else can organizations do? 

Changes to legislation bring opportunities. Any act enforced is there to provide the most basic standards that must be adhered to, but there’s nothing stopping your organization going further to support your employees.

True People-focused organizations will be looking to get ahead of the game and implement diversity and inclusion initiatives that support every employee —not just pregnant or post-partum women.

The information contained in this post is for general guidance purposes only. It is not legal advice. Sage makes no promises as to the completeness or accuracy of this post and the information is delivered on an “as is” basis without any warranties of any kind.  You should seek legal counsel of your choosing if you are unsure about the implications of this law on your business.

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